Thursday, May 19, 2011

OK Comp Reform Intriguing

I'm intrigued with the ongoing workers' compensation "reform" (I usually always put the term "reform" in quotes when referring to work comp legislation intended to make substantive changes because in reality what generally occurs is some tweaking but no real wholesale change of a system) attempt in Oklahoma because of the change in the burden of proof for injured workers to "preponderance of the evidence."

 Most states make benefits available so long as there is "substantial evidence" supporting a finding of AOE/COE.

"Substantial evidence" in general means that regardless of whether there is some "better" evidence, if there is enough to support a finding then it's a winner. It is the equivalent of "some credible evidence" - just enough to find what is proposed.

On the other hand the "preponderance" standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.

In most cases this probably won't make a difference, but in disputed cases this change will increase the amount of litigation just to resolve the base question of compensability. This may or may not be a good thing for OK employers, who have been pushing for this change.

The good thing is that perhaps fewer cases will qualify for work comp, which on its face means lower work comp bills for the employer.

The downside, and there is always a downside, is that while cases linger in the courts on evidentiary hearings relative to compensability, the clock keeps ticking on all other aspects of the claim making it much, much more expensive if the outcome is against the employer.

Going to court with competitive evidence and conflicting conclusions means really knowing the trier of fact, their philosophy on comp, and track record of rulings. Get any of those variables wrong, and the probability of a favorable outcome declines.

If this measure passes ( the Senate unanimously passed SB 878 yesterday and the bill moved to the House and is scheduled for a vote today) you can bet litigation will increase in OK, and some employers won't be happy with their comp bills a few years down the road as their x-mods wreak havoc on base rates due to that one enduring disputed case that didn't come out the way the employer thought it would.

But, on the bright side for my OK bar card holding colleagues, local attorneys who know their judges should do just fine with this "reform."

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